{"id":2143,"date":"2016-11-14T19:21:58","date_gmt":"2016-11-14T19:21:58","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=2143"},"modified":"2016-11-14T19:21:58","modified_gmt":"2016-11-14T19:21:58","slug":"how-the-law-sees-kaepernicks-protest","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2016\/11\/14\/how-the-law-sees-kaepernicks-protest\/","title":{"rendered":"How the Law Sees Kaepernick\u2019s Protest"},"content":{"rendered":"By Lee Henderson\n\nColin Kaepernick\u2019s decision to take a knee during the playing of the Star-Spangled Banner has sparked much conversation about the customs and legal rules expected during the National Anthem. While some take offense to the issues the back-up quarterback is kneeling for, most critics are offended by what they perceive as a disregard for the military members who fought and died for the flag (despite Kaepernick\u2019s denial<\/a>.)\n\nSince the Anthem\u2019s first use in the early 1900\u2019s, standing during it\u2019s playing was a contentious issue. Following Hoover\u2019s declaration that the Star-Spangled Banner be the country\u2019s official national anthem in 1931, a poll<\/a> revealed that public opinion was split as to proper behavior during the Anthem, half of respondents saying mandated standing was overly authoritarian.\n\nCongress weighed in on the issue when it passed 36 U.S.C. \u00a7 301<\/a>, also known as the National Anthem Statute, which said that people should \u201cface the flag and stand at attention with their right hand over their heart.\u201d Although this still stands as law, no criminal penalties were ever prescribed in case of violation of the provisions.\n\nThe Supreme Court also took its turn commenting on the status of these customs as they pertain to the Pledge of Allegiance. In West Virginia State Board of Education v. Barnette<\/em><\/a>, the majority struck down a West Virginia state law that required the recitation of the Pledge at the beginning of every class by each student. \u201cThose who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard,\u201d said Justice Jackson at the time. This landmark First Amendment case set the stage for the recognized tolerance of silent dissent from patriotic activities.\n\nAs these issues pertain to Kaepernick specifically, the NFL\u2019s Personal Conduct Policy<\/a> demands that its employees \u201cavoid conduct detrimental to the integrity of and public confidence in the National Football League\u201d but states no formal rule requiring players to stand during the playing of the National Anthem. Roger Goodell expressed<\/a> his own personal distaste for Kaepernick\u2019s actions, as well as the League\u2019s, but also emphasized players\u2019 right to use their platform for social change as long as it is done in a respectful manner. While this kind of tolerance leaves room for improvement, it is a far cry from the oppressive policies of the 1968 International Olympic Committee<\/a>.\n\nThe bedrock of the First Amendment is built upon the notion that offensive behavior need not be unconstitutional<\/a> (Kennedy, J., concurring); it is the Amendment\u2019s success that opposition can be heard and not suppressed. If there is any offense to be taken from the Kaepernick controversy, it is that there are people living in America today who feel the need to take a stance on racial inequality. Tactics aside, Kaepernick\u2019s knee spurred forward an important conversation about police brutality and racial bias that most can agree is worth having, no matter which side of the controversy you fall on. We can all thank the First Amendment for this conversation.","protected":false},"excerpt":{"rendered":"

By Lee Henderson Colin Kaepernick\u2019s decision to take a knee during the playing of the Star-Spangled Banner has sparked much conversation about the customs and legal rules expected during the National Anthem. While some take offense to the issues the back-up quarterback is kneeling for, most critics are offended by what they perceive as a…<\/p>\n","protected":false},"author":1,"featured_media":2144,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,15,16,18,19,27],"tags":[330,656,691,918,1065,1069,1095,1096,1331,1430],"class_list":["post-2143","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-authors","category-blog-news","category-feature","category-feature-img","category-recent-stories","tag-colin-kaepernick-kneeling","tag-first-amendment","tag-free-speech","tag-kneeling","tag-national-anthem","tag-national-football-league","tag-nfl","tag-nfl-personal-conduct-policy","tag-roger-goodell","tag-star-spangled-banner"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2143","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=2143"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2143\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/2144"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=2143"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=2143"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=2143"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}